AB348: Bill Text Engrossed

3. Prohibits a person who owns or controls a governmental pole or UPDS from entering into an exclusive arrangement with any person for the right to attach to or use such poles, and prohibits the owner of such poles from imposing fees or charges for the use of the poles that discriminate based on the type of collocation provided by the person who contracts to use the poles.

4. Provides that the rate a political subdivision may charge for collocating a small wireless facility on a UPDS is governed by agreement between the political subdivision and a wireless provider and provides that, if no agreement is reached, the rate is subject to the Public Service Commission's authority under current law.

5. Subject to a number of conditions, limits the rate an owner of a governmental pole, other than a UPDS, charges another person to collocate on the pole to an amount that is sufficient to recover the owner's actual, direct, and reasonable costs, subject to a maximum of $100 per pole per year.

6. Specifies deadlines for the state and political subdivisions to make available rates, fees, and terms for collocation of small wireless facilities on governmental poles that comply with the bill's requirements and to amend existing agreements relating to collocation in the ROW.

7. Provides that a person who owns or controls a governmental pole other than a UPDS may not require more make-ready work than required to meet applicable codes or industry standards, and prohibits fees for make-ready work from including costs related to preexisting conditions, prior damage, or noncompliance with current standards. Such fees may not exceed actual costs or the amount charged to other communications service providers for similar work.

8. Requires the state and political subdivisions to authorize the collocation of small wireless facilities on wireless support structures and governmental poles that are not located within ROW to the same extent that the governmental unit permits access to such structures for other commercial projects or uses.

Local authority, dispute resolution

With regard to the authority of a political subdivision, the bill does the following:

1. Subject to the limitations contained in the bill, and federal law, authorizes a political subdivision to exercise zoning, land use, planning, and permitting authority with respect to wireless support structures and utility poles.

2. In general, prohibits a political subdivision from exercising authority over the design, engineering, construction, installation, or operation of any small wireless facility located inside or on the site of any campus, stadium, or athletic facility not owned or controlled by the political subdivision.

3. Limits regulatory authority over the placement or operation of communications facilities in a ROW by entities authorized to operate in the ROW on the bill's effective date or by the wireless provider affiliates of such entities.

4. Provides a mechanism for political subdivisions to allow the placement of a wireless facility or wireless support structure at a temporary rate pending the resolution of a ROW dispute.

Indemnification

In general, the bill requires a wireless provider to indemnify and hold harmless a political subdivision for any liability and loss from personal injury or property damage that results from the use or occupancy of ROW by the wireless provider, and requires a wireless provider to waive any claims it may have against a political subdivision with respect to damages, however caused, based on the theory of liability.

Setback requirements for a mobile service support structure

Generally, under current law, a political subdivision may not impose a setback requirement for a mobile service support structure. This bill grants a political subdivision limited authority to impose a setback requirement on the placement of such a structure with regard to new or substantially modified structures. Under the bill, a requirement could apply only to a structure that is constructed on land that is zoned for only single-family residential use or on adjacent land. In addition, the setback requirement must be based on the height of the proposed structure, and the requirement may not exceed the height of the proposed structure. The bill also provides, however, that a setback requirement does not apply to an existing or new utility pole, or wireless support structure that supports small wireless facilities, if the pole or facility meets the height limitations specified in the bill for such a pole or facility.

Also under the bill, a political subdivision must allow a setback of a proposed mobile service support structure that is less than the height of the structure if all property owners of lots zoned for only single-family residential use, located within a radius of three times the height of the structure, consent to such placement.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB348-engrossed,1 Section 1. 66.0404 (4e) of the statutes is created to read:

AB348-engrossed,5,6 66.0404 (4e) Setback requirements. (a) Notwithstanding sub. (4) (r), and subject to the provisions of this subsection, a political subdivision may enact an ordinance imposing setback requirements related to the placement of a mobile service support structure that applies to new construction or the substantial modification of facilities and support structures, as described in sub. (2).

AB348-engrossed,5,12 (b) A setback requirement may apply only to a mobile service support structure that is constructed on or adjacent to a parcel of land that is subject to a zoning ordinance that permits only single-family residential use on that parcel. A setback requirement does not apply to an existing or new utility pole, or wireless support structure in a right-of-way that supports a small wireless facility, if the pole or facility meets the height limitations in s. 66.0414 (2) (e) 2. and 3.

AB348-engrossed,6,4 (c) The setback requirement under par. (b) for a mobile service support structure on a parcel shall be measured from the lot lines of other adjacent and non-adjacent parcels zoned for only single-family residential use or for which only single-family residential use is a permitted use.

AB348-engrossed,6,8 (d) A setback requirement must be based on the height of the proposed mobile service support structure, and the setback requirement may not be a distance that is greater than the height of the proposed structure and, subject to par. (e), may be a distance that is less than the height of the proposed structure.

AB348-engrossed,6,13 (e) A political subdivision shall allow a setback of a proposed mobile service support structure that is less than the height of the proposed structure if all property owners of lots that are zoned for only single-family residential use, that are located within a radius of 3 times the height of the proposed structure, consent in writing to such placement of the proposed structure.

AB348-engrossed,2 Section 2. 66.0414 of the statutes is created to read:

AB348-engrossed,6,15 66.0414 Small wireless facilities. (1) Definitions. In this section:

AB348-engrossed,6,17 (a) “Antenna” means communications equipment that transmits and receives electromagnetic radio signals and is used in the provision of wireless services.

AB348-engrossed,6,23 (b) “Applicable codes” means the state electrical wiring code, as defined in s. 101.80 (4), the state plumbing code specified in s. 145.13, the fire prevention code under ch. SPS 314, Wis. adm. code, the Wisconsin commercial building code under chs. SPS 361 to 366, the Wisconsin uniform dwelling code under chs. SPS 320 to 325, and local amendments to those codes enacted solely to address imminent threats of destruction of property or injury to persons.

AB348-engrossed,6,24 (c) “Applicant” means a wireless provider that submits an application.

AB348-engrossed,7,3 (d) “Application” means an application for a permit under this section to collocate a small wireless facility or to install or modify a utility pole or wireless support structure.

AB348-engrossed,7,6 (e) “Collocate” or “collocation” means the placement, mounting, replacement, modification, operation, or maintenance of a wireless facility on or adjacent to a wireless support structure or utility pole.

AB348-engrossed,7,9 (f) “Communications service provider” means a cable operator, as defined in 47 USC 522 (5); a provider of information service, as defined in 47 USC 153 (24); a telecommunications carrier, as defined in 47 USC 153 (51); or a wireless provider.

AB348-engrossed,7,10 (g) “Fee” means a one-time charge.

AB348-engrossed,7,14 (h) “Governmental pole” means a utility pole that is owned or operated by the state or by a political subdivision in a right-of-way, and a pole or similar structure owned or operated by the state or a political subdivision in a right-of-way that supports only wireless facilities.

AB348-engrossed,7,18 (i) “Investor-owned electric utility” means a public utility whose purpose is the generation, transmission, delivery, or furnishing of electric power but does not include a public utility owned and operated wholly by a municipality or a cooperative association organized under ch. 185.

AB348-engrossed,7,21 (j) “Microwireless facility” means a small wireless facility that does not exceed 24 inches in length, 15 inches in width, and 12 inches in height and that has no exterior antenna longer than 11 inches.

AB348-engrossed,7,23 (k) “Permit” means written authorization required by the state or a political subdivision to perform an action, or initiate, continue, or complete a project.

AB348-engrossed,7,24 (L) “Political subdivision” means any city, village, town, or county.

AB348-engrossed,7,25 (m) “Rate” means a recurring charge.

AB348-engrossed,8,6 (n) “Right-of-way” means the area on, below, or above a highway, as defined in s. 340.01 (22), other than a federal interstate highway; sidewalk; utility easement, other than a utility easement for a cooperative association organized under ch. 185 for purposes of providing or furnishing heat, light, power, or water to its members only; or other similar property, including property owned or controlled by the department of transportation.

AB348-engrossed,8,8 (o) “Small wireless facility” means a wireless facility to which all of the following apply:

AB348-engrossed,8,11 1. Each antenna is located inside an enclosure of no more than 6 cubic feet or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an enclosure of no more than 6 cubic feet.

AB348-engrossed,8,17 2. All other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet, except that when calculating the allowable volume for purposes of this subdivision, an electric meter, concealment elements, a telecommunications demarcation box, a ground-based enclosure, a power transfer switch, and vertical cable runs for the connection of power and other services may not be included.

AB348-engrossed,8,21 (p) “Utility pole” means a structure that is used in whole or in part by a communications service provider or for electric distribution, lighting, traffic control, signage, or a similar function but does not include a structure that supports only a wireless facility.

AB348-engrossed,8,25 (q) “Utility pole for designated services” means a utility pole owned or operated in a right-of-way by the state, a political subdivision, or a utility district that is designed to, or used to, carry electric distribution lines, or cables or wires for telecommunications, cable, or electric service.

AB348-engrossed,9,5 (r) “Wireless facility” means equipment at a fixed location that enables wireless service between user equipment and a wireless network, not including the structure or improvements on, under, or within which the equipment is collocated. “ Wireless facility” includes a small wireless facility. “Wireless facility” does not include any of the following:

AB348-engrossed,9,6 1. A wireline backhaul facility.

AB348-engrossed,9,9 2. Coaxial or fiber-optic cable between utility poles or wireless support structures or otherwise not immediately adjacent to or directly associated with a particular antenna.

AB348-engrossed,9,12 (s) “Wireless infrastructure provider” means any person, other than a wireless services provider, that builds or installs wireless communication transmission equipment, wireless facilities, or wireless support structures.

AB348-engrossed,9,14 (t) “Wireless provider” means a wireless infrastructure provider or a wireless services provider.

AB348-engrossed,9,17 (u) “Wireless services” means any service using licensed or unlicensed wireless spectrum, including the use of a Wi-Fi network, whether at a fixed location or by means of a mobile device, that is provided using wireless facilities.

AB348-engrossed,9,19 (v) “Wireless services provider” means any person who provides wireless services.

AB348-engrossed,9,22 (w) “Wireless support structure” means an existing pole or other freestanding structure, other than a utility pole, that is designed to support, or capable of supporting, wireless facilities.

AB348-engrossed,9,24 (x) “Wireline backhaul facility” means a facility for providing wireline backhaul service.

AB348-engrossed,10,2 (y) “Wireline backhaul service” means the transport of communications services by wire from wireless facilities to a network.

AB348-engrossed,10,4 (2) Rights-of-way. (a) Applicability. This subsection applies only to the activities of a wireless provider within a right-of-way.

AB348-engrossed,10,8 (b) Exclusive use prohibited. Neither the state nor a political subdivision may enter into an exclusive arrangement with any person for the use of a right-of-way for the construction, operation, marketing, or maintenance of wireless facilities, wireless support structures, or for the collocation of small wireless facilities.

AB348-engrossed,10,15 (c) Rates and fees. The state or a political subdivision may charge a wireless provider a rate or fee for the use a right-of-way with respect to the construction or collocation of a wireless facility or wireless support structure in the right-of-way only if the state or political subdivision charges other communications service providers or utilities for the use of the right-of-way. If the state or a political subdivision charges a wireless provider a rate or fee as described in this paragraph, all of the following apply:

AB348-engrossed,10,17 1. Subject to subd. 5., the fee or rate must be limited to no more than the direct and actual cost of managing the right-of-way.

AB348-engrossed,10,19 2. Except as provided in par. (d), the fee or rate must be competitively neutral with regard to other users of the right-of-way.

AB348-engrossed,10,22 3. The fee or rate may not result in a double recovery by the state or political subdivision if existing fees, rates, or taxes already recover the direct and actual cost of managing the right-of-way.

AB348-engrossed,10,24 4. The fee or rate may not be in the form of a franchise or other fee based on revenue or customer counts.

AB348-engrossed,11,4 5. The fee or rate may not exceed an annual amount equal to $20 multiplied by the number of utility poles or wireless support structures in the state's or political subdivision's geographic jurisdiction on which the wireless provider has collocated a small wireless facility antenna.

AB348-engrossed,11,10 (d) Rate or fee adjustment. 1. Except as provided in subd. 2., by the later of the first day of the 7th month beginning after the effective date of this subdivision .... [LRB inserts date], or 3 months after receiving its first request for access to the right-of-way by a wireless provider, the state or a political subdivision shall make available, through ordinance or otherwise, rates, fees, and terms for such access that comply with this subsection.

AB348-engrossed,11,17 2. Agreements between a wireless provider and the state or a political subdivision that are in effect on the effective date of this subdivision .... [LRB inserts date], and that relate to access to the right-of-way, remain in effect, subject to applicable termination provisions, except that by the first day of the 25th month beginning after the effective date of this subdivision .... [LRB inserts date], the state or political subdivision shall amend any such agreement to comply with the rates, fees, and terms required under this subsection.

AB348-engrossed,12,4 (e) Right of access. 1. Except as otherwise provided in this subsection and subs. (3) (c) 4. and (4), and notwithstanding ss. 182.017 and 196.58 and any zoning ordinance enacted by a political subdivision under s. 59.69, 60.61, or 62.23, a wireless provider shall have the right to collocate wireless facilities and construct, modify, maintain, and operate utility poles, wireless support structures, conduit, cable, and related appurtenances and facilities along, across, upon, and under a right-of-way. Such facilities and structures may not obstruct or hinder travel, drainage, maintenance, or the public health, safety, and general welfare on or around the right-of-way, or obstruct the legal use of the right-of-way for other communications providers, public utilities, cooperative associations organized under ch. 185 for the purpose of producing or furnishing heat, light, power, or water to their members only, or pipes or pipelines transmitting liquid manure.

AB348-engrossed,12,6 2. Except as provided in subd. 4., the height of a utility pole or wireless support structure installed, or modified, in a right-of-way may not exceed the greater of:

AB348-engrossed,12,9 a. Ten feet above the tallest existing utility pole that is in place on the effective date of this subd. 2. a. .... [LRB inserts date], and that is located within 500 feet of the new or modified pole or structure in the same right-of-way.

AB348-engrossed,12,10 b. Fifty feet above ground level.

AB348-engrossed,12,12 3. The height of a wireless facility installed, or modified, in a right-of-way may not exceed the greater of:

AB348-engrossed,12,15 a. Ten feet above the tallest existing utility pole or wireless support structure that is in place on the effective date of this subd. 3. a. .... [LRB inserts date], and that is located in the same right-of-way.

AB348-engrossed,12,16 b. The maximum height described in subd. 2. b.

AB348-engrossed,12,21 4. A wireless provider may construct, modify, and maintain a utility pole, wireless support structure, or wireless facility along, across, upon, and under a right-of-way that exceeds the height limits in this paragraph if the wireless provider complies with height limits under the zoning ordinances enacted by a political subdivision under s. 59.69, 60.61, or 62.23.

AB348-engrossed,13,3 5. With regard to the rights of a wireless provider to construct wireless facilities or modify utility poles, wireless support structures, conduit, cable, and related appurtenances and facilities as described in subd. 1., a political subdivision may propose an alternate location within 50 feet of the proposed location, which the wireless provider shall use if it has the right to use the alternate structure on reasonable terms and conditions and the alternate location does not impose technical limits or additional costs, as determined by the wireless provider.

AB348-engrossed,13,11 (f) Damage and repair. The state or a political subdivision may require a wireless provider to repair all damage that is directly caused by the activities of the wireless provider in a right-of-way involving its wireless facilities, wireless support structures, or utility poles, and to return the right-of-way to its former condition before it was so damaged. If the wireless provider fails to make the required repairs within a reasonable amount of time after receiving a written request to do so from the state or a political subdivision, the state or political subdivision may make the necessary repairs and charge the liable party for the cost of the repairs.

AB348-engrossed,13,14 (g) Nondiscrimination. The state and political subdivisions must administer and regulate a right-of-way in a competitively neutral manner with regard to all users of the right-of-way.

AB348-engrossed,13,19 (3) Collocation of small wireless facilities. (a) Applicability. This subsection applies to the activities of a wireless provider both within and outside a right-of-way. Except as provided in this subsection and in subs. (2) and (4), neither the state nor a political subdivision may prohibit, regulate, or charge any person for the collocation of small wireless facilities.

AB348-engrossed,13,24 (b) Zoning. Notwithstanding an ordinance enacted under s. 59.69, 60.61, or 62.23, and except as provided in par. (c) 4., small wireless facilities shall be classified as permitted uses and are not subject to a political subdivision's zoning ordinances if they are collocated in a right-of-way or outside a right-of-way if the property is not zoned exclusively for single-family residential use.

AB348-engrossed,14,6 (c) Permits. 1. Subject to subd. 3., the state or a political subdivision may require an application for a permit to collocate a small wireless facility and to construct, modify, maintain, or operate a new or replacement utility pole or wireless support structure, provided such permit is of general applicability and does not apply exclusively to wireless facilities. All of the following apply to such permit applications filed by an applicant:

AB348-engrossed,14,8 a. Neither the state nor a political subdivision may require an applicant to perform services unrelated to the collocation for which approval is sought.

AB348-engrossed,14,12 b. Neither the state nor a political subdivision may require an applicant that is a wireless provider to provide more information in its permit application than such a governmental unit requires from a communications service provider that is not a wireless provider and that applies for the same type of permit.

AB348-engrossed,14,15 c. The state or a political subdivision shall notify an applicant in writing, within 10 days of receiving the application, whether it is complete. If it is incomplete, the state or political subdivision shall specify why the application is incomplete.

AB348-engrossed,14,19 d. If a permit application involves a new utility pole or wireless support structure, and the state or a political subdivision fails to approve or deny the permit application under this section not later than 90 days after its receipt, the applicant may consider its permit application approved.

AB348-engrossed,14,24 e. If a permit application proposes to collocate wireless facilities to an existing utility pole or wireless support structure, or replace an existing utility pole or wireless support structure, and the state or a political subdivision fails to approve or deny the permit application under this section not later than 60 days after its receipt, the applicant may consider its permit application approved.

AB348-engrossed,15,5 f. If there is any type of construction, building, or encroachment permit required by a political subdivision that relates to a permit under subd. 1. d. or e., and the political subdivision fails to approve or deny that permit application within the specified 60-day or 90-day time frame, the applicant may consider its permit application approved.

AB348-engrossed,15,14 g. The state or a political subdivision shall approve a permit application unless it does not meet the applicable codes. If the permit application is denied for this reason, the state or political subdivision shall provide the applicant with written documentation explaining the basis for the denial no later than the date that the permit application is denied. An applicant may cure the deficiencies identified in the documentation and resubmit the permit application no later than 30 days after receipt of the documentation without being required to pay an additional application fee. The state or a political subdivision shall approve or deny the revised permit application not later than 30 days after its receipt.

AB348-engrossed,15,23 h. An applicant may file a consolidated permit application to collocate up to 30 small wireless facilities, or a greater number if agreed to by a political subdivision, provided that all the small wireless facilities in the application consist of substantially similar equipment and are to be placed on similar types of wireless support structures. In rendering a decision on a consolidated permit application, a political subdivision may approve a permit for some small wireless facilities and deny a permit for others, but the political subdivision may not use the denial of one or more permits as a basis to deny permits for all of the small wireless facilities in the application.

AB348-engrossed,16,4 i. If an applicant's permit application is approved, the applicant shall commence the activity authorized by the permit no later than 365 days after its receipt and shall pursue work on the activity until completion. Neither the state nor a political subdivision may place any time limitation on an applicant that is related to the permit. An applicant may request that the state or a political subdivision terminate the applicant's permit.